Key v. State

Supreme Court of Arkansas

Key v. State

776 S.W.2d 820, 300 Ark. 66, 1989 Ark. LEXIS 408

CourtSupreme Court of Arkansas

DecidedSeptember 25, 1989

DocketCR 88-203

StatusPublished

Cited by16 cases

This text of 776 S.W.2d 820 (Key v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Key v. State, 776 S.W.2d 820, 300 Ark. 66, 1989 Ark. LEXIS 408 (Ark. 1989).

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Opinions

Robert H. Dudley, Justice.

The petitioner seeks a Writ of Prohibition for an alleged violation of his speedy trial right. We deny the writ.

Petitioner was arrested on November 23, 1987, and, along with two (2) co-defendants, was later charged with capital felony murder. The twelve-month limitation is applicable. A.R.Cr.P. Rule 28.1(c). Therefore, unless there are excludable periods, it was necessary to bring petitioner to trial on or before November 23, 1988. Five days after that date, on November 28, 1988, petitioner had not been brought to trial and filed a motion to dismiss under A.R.Cr.P. Rule 28.1(c). The trial court denied the motion. Petitioner now seeks a Writ of Prohibition.

On January 27, 1988, the trial court set April 12, 1988, as the date for the trial. However, on March 25, 1988, a co-defendant moved that the trial be continued and that the April 12 trial date be used as a date for additional pre-trial motions. During a motion hearing on March 28,1988, the trial judge asked petitioner’s attorney how she responded to the motion for continuance, and she responded that she had no problems with it. The motion for a continuance was granted, and the trial court announced that the case would be reset for August 1988. The trial court’s published calendar reflects August 8-12 as trial dates for the county where the case is pending. The trial court failed to make a docket entry or enter an order setting out the continuance as an excluded period as required by A.R.Cr.P. Rule 28.3(i).

Petitioner argues that the failure to make a docket notation or enter a timely order is fatal to prosecution of the case at bar. The argument ignores our recent case of Kennedy v. State, 297 Ark. 488, 763 S.W.2d 648 (1989), where we held that when a case is delayed by the accused and that delaying act is memorialized by a record taken at the time it occurred, that record may be sufficient to satisfy the requirements of A.R.Cr.P. Rule 28.3(i). Such a holding is based upon the rule that one cannot agree with a ruling by the trial court and then attack that ruling on appeal. See Gilbert v. State, 277 Ark. 61, 639 S.W.2d 346 (1982). Accordingly, we hold that the record of the trial judge’s finding that a continuance should be granted, which was agreed to by the petitioner, is sufficient to satisfy the requirements of A.R.Cr.P. Rule 28.3(i). That one excluded period is sufficient to deny the petition.

Writ denied.

Purtle, J., dissents. Hickman, Hays, and Glaze, JJ., concur.

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Robert H. Dudley, Justice.

The petitioner seeks a Writ of Prohibition for an alleged violation of his speedy trial right. We deny the writ.

Petitioner was arrested on November 23, 1987, and, along with two (2) co-defendants, was later charged with capital felony murder. The twelve-month limitation is applicable. A.R.Cr.P. Rule 28.1(c). Therefore, unless there are excludable periods, it was necessary to bring petitioner to trial on or before November 23, 1988. Five days after that date, on November 28, 1988, petitioner had not been brought to trial and filed a motion to dismiss under A.R.Cr.P. Rule 28.1(c). The trial court denied the motion. Petitioner now seeks a Writ of Prohibition.

On January 27, 1988, the trial court set April 12, 1988, as the date for the trial. However, on March 25, 1988, a co-defendant moved that the trial be continued and that the April 12 trial date be used as a date for additional pre-trial motions. During a motion hearing on March 28,1988, the trial judge asked petitioner’s attorney how she responded to the motion for continuance, and she responded that she had no problems with it. The motion for a continuance was granted, and the trial court announced that the case would be reset for August 1988. The trial court’s published calendar reflects August 8-12 as trial dates for the county where the case is pending. The trial court failed to make a docket entry or enter an order setting out the continuance as an excluded period as required by A.R.Cr.P. Rule 28.3(i).

Petitioner argues that the failure to make a docket notation or enter a timely order is fatal to prosecution of the case at bar. The argument ignores our recent case of Kennedy v. State, 297 Ark. 488, 763 S.W.2d 648 (1989), where we held that when a case is delayed by the accused and that delaying act is memorialized by a record taken at the time it occurred, that record may be sufficient to satisfy the requirements of A.R.Cr.P. Rule 28.3(i). Such a holding is based upon the rule that one cannot agree with a ruling by the trial court and then attack that ruling on appeal. See Gilbert v. State, 277 Ark. 61, 639 S.W.2d 346 (1982). Accordingly, we hold that the record of the trial judge’s finding that a continuance should be granted, which was agreed to by the petitioner, is sufficient to satisfy the requirements of A.R.Cr.P. Rule 28.3(i). That one excluded period is sufficient to deny the petition.

Writ denied.

Purtle, J., dissents. Hickman, Hays, and Glaze, JJ., concur.

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776 S.W.2d 820, 300 Ark. 66, 1989 Ark. LEXIS 408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/key-v-state-ark-1989.

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